Petition for Writ of Certiorari — Simmons v. Connecticut

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B7 1620 ¢ *

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JOSEPH Ee < CANIOL . 3

No. :

IN THE

Supreme Court of the United States

OcroBerR TERM, 1987

AUGUSTUS J. SIMMONS,

Petitioner,

v.

STATE OF CONNECTICUT;

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE STATE OF CONNECTICUT

AUGUSTUS 3 SIMMONS

Pro Se

P. QO. Address:

P.Q. Box #1

Windsor, CT 06095

QUESTIONS PRESENTED FOR REVIEW

1. Whether the courts below erred in disregarding the

evidence of ownership against a criminal charge of inter-

ference (breach of peace) with a sewer project being in-

stalled upon private property without a right-of-way and

without compensation.

2. Whether the courts below erred in not addressing

the conflict as between the Metropolitan District Commission,

who filed the complaint, and proceeded to install a sewer

through private property, in a town beyond its jurisdiction.

3.- Whether the courts below erred in instructions to

the jury that defendant had no legal right to assert owner-

ship against the Metropolitan District Commission, where, or

when the State of Connecticut, Department of Transporta-

tion, was going to be the benefactor of the project.

4. Whether the courts below erred in permitting a

“trespasser to charge an “owner with interference of a

sewer project where no physical violence was involved.

5. Whether the courts below erred in instructions to

the jury concerning the defense of reasonable resistance to

an unlawful entry and illegal seizure of real property.

il

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ..........

TABLE OF AUTEARASS ERS . 6 css ks wance concen beaee

OPINIONS BELOW... 65s eae eee eee

JURISDICTION ........- 2-2 cece cence erence ncenees

STATUTE AND REGULATION INVOLVED ........

STATEMENT OF THE CASE .. 25... .is iscsi nda stusn

ARGUMENT .

CONCLUSION

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

APPENDIX E

APPENDIX F

APPENDIX G

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AUTHORITIES

Page

Cupp y. Naughton, 414 U.S. 141, 94 S. Ct. 396,

38 L.Ed.2d 360 ........ oy yeer is)

Davis v. Greenstein, 112 Conn. 530, 535, 153 A. 161 )

Drazen Lumber vy. Casner, 156 Conn. 401, 405-406, 242

A.2d 274 . Pe eee eN Nee AL Soh A) een) See Te 5

Duncan v McTiernan, 151 Conn. 469 ........ eee ae 5

Holland v. United States, 348 U.S. 121, 138, 75 S. Ct. 127.

99 L.Ed. 150 (1954) hte Ra Pact oi fs 7

~

Lynch v. Household Finance Corp., 405 U.S. 538, 92 S. Ct.

Ce pe kee v oe ae

Norwich Roman Catholic Diocesan Corp. v. Southern New

England Contracting Co., 1u4 Conn. 472, 478, 325

| a PS Re ene, Cay A 8

Payton vy. New York, 445 U.S. 573 .... Fey Ree re 8

Roberti v. Barberi, 105 Conn. 539, 543, 136 A. 85 7 Y

Sickmund v. Connecticut Co.. 122 Conn. 375. 382. i89

a ea "eh Dina de kA bai anh ie aaa 9

Simmons \. State of Connecticut, 472 F.2d 509 - 4

State v. Ballas, 180 Conn. 662, 674, 433 A.2d 989 ....... 7

State v. Festo, 181 Conn. 254, 259, 435 A.2d 38 ...... 7

State v. Gallagher, 191 Conn. 433 at 455 A Pare See 8

iv

State v. Kurvin, 186 Conn. 555 at 565 ................ 4

State v. Saraceno, 178 Conn. 416, 419, 423 t= Qe |

United States v. Clark, 475 F.2d 2A0, 248, 2nd Cir. 1973 8

United States v. Lodwick, 410 F.2d 1202, 1204

CU Es i ake eee chad ca dadearweweeseeees 7

STATUTES, ETC.

Connecticut General Statute §53a-18] ............... 2

United States Constitution, Fifth Amendment ....... 7

United States Constitution, Fourteenth Amendment 2, 7, 9

Connecticut Constitution, Article First, Sec. 8 ....... 2,9

Connecticut Constitution, Article First, Sec. ll ....... 2

ee Ce os oe bend eea eased ssa aween’ 2

gS | Er rar rs ee Pere 4

ee

No.

IN THE

Sipreme Court of the United States

OcToBeER TERM, 1987

AUGUSTUS J. SIMMONS,

Petitioner,

Vv.

STATE OF CONNECTICUT:

CONNECTICUT DEPARTMENT OF TRANSPORTATION:

J. WILLIAM BURNS, COMMISSIONER,

METROPOLITAN DISTRICT COMMISSION;

JOHN J. BARTIZEK, CLERK,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE STATE OF CONNECTICUT

OPINIONS BELOW

The ruling from the Connecticut Appellate Court (13

Conn. App. 804), dated December 29, 1987 is printed at

Appendix page 2a infra and is official notification to counsel

of record for all purposes. The Supreme Court of the State

of Connecticut upon Order on Petition for Certification to

Appeal ruled on consideration of the petition by the defen-

dant for certification to appeal from the Appellate Court

(13 Conn. App. 804) it is hereby ordered that said petition

be, and the same hereby is denied, is printed at Appendix

page 4a infra and is officially reported.

2

JURISDICTION

The date of the denial on Petition for Certiorari by the

Connecticut Supreme Court sought to be reviewed is Feb-

ruary 2, 1988 which is also the date of its filing. The juris-

diction of this court is invoked under 28 U.S.C. § 1257(7) (8)

and under Rule 17.1 of the United States Supreme Court

Rules.

SYATUTE AND REGULATION INVOLVED

(Set out in Appendix pages 5a, 6a, 7a)

Connecticut General Statute § 53a-1$1

14th Amendment, United States Constitution

Fifth Amendment, United States Constitution

Article First, Section 8 of the Connecticut Constitution

Article First, Section 11 of the Connecticut Constitution

STATEMENT OF THE CASE

Augustus J. Simmons, the petitioner herein, has for the

past two and a half (252) decades asserted his private

property rights against the unconsented entry upon his land

by the Connecticut Department of Transportation, the Fed-

eral Aviation Administration and the Metropolitan District

Commission without statutory authority, wthout compensa-

tion, and in violation and non-compliance of federal and

state rules, regulations, and statutes, applicable to the taking

of private property for a federal project with federal funds.

What they have not accomplished through orderly

eminent domain procedures as mandated by the United

States Congress with the enactment of Public Law 91-646

in 1971, the Uniform Real Property Acquisition Act, they

have attempted to accomplish with “police power,” dominion

over private property of the petitioner.

3

The most recent incident involves an installation of a

sewer line to service the western portion of Bradley Inter-

national Airport by the Metropolitan District Commission

through the private lands of the petitioner under the pro-

tection of the State Attorney General's office who rely upon

a fraudulent citation placed upon the land records with no

due process, no compensation, no compliance with federal

or state statutes or regulations, no notice to lien-holders and

no inclusion of the land owner in the citation, and, the

Federal Aviation Administration (F.A.A.) having placed

sophisticated navigational instrumentation upon petitioner's

property without acquiring an adequate property niterest,

without paying for the privilege, has also been a trespasser

for over two (2) decades, has been in accord with the

bumbling and assurances give’ to the federal agency by the

Connecticut Department of Transportation, that, perhaps by

the next century the necessary property interests will be

acquired.

it is apparent and obvious the Metropolitan District

Commission had no deed, no right-of-way, paid no compen-

sation, was a trespasser with no jurisdiction in a town which

was not a member of the Commission and as such had no

authority to insist upon an arrest for an orderly assertion of

private property rights and relied on the police power and

aid of the State Police force to bypass eminent domain

procedures.

The date of this particular arrest was August 28, 1985

and is only a very small part of the numerous on-going

episodes involving a navigational servitude imposed upon

the petitioner and the deprivation of a constitutionally pro-

tected property interest for which the petitioner is entitled

to notice and a hearing under the due process clauses of

the Federal and State Constitutions.

a: |

4

On or about February 25, 1962, the STATE OF

CONNECTICUT filed a taking on the land records of the

Town of East Granby, Connecticut at Volume 38, page 596.

On October 25, 1967 petitioner SIMMONS prevailed in a

state court action and had the taking adjudicated illegal.

In 1967, petitioner began an action for ejectment, trespass,

and to quiet title against the state in State Court. (This

action would continue to 1977 with judgment for petitioner).

On January 25, 1968, the STATE again filed a taking on the

land records at Volume 46, page 113. On March 30, 1971

petitioner again prevailed in the State Court to have the

second taking declared illegal, null and void.

In 1971, petitioner brought an action in Federal District

Court against the state and various of its officials under the

Civil Rights Act, 28 U.S.C. § 1985. In its decision of January

19, 1973, reported at 4/2 F.2d 509 (2nd Cir., 1973) the

United States Court of Appeals for the Second Circuit, on

appeal from Dismissal of The Complaint, reversed and re-

manded with orders to stay the action in the District Court

pending resolution of the boundary dispute in State Court.

In November 1974, while petitionef continues paying

taxes to the Town of East Granby, the F.A.A. demands the

Connecticut Department of Transportation install a perma-

nent security fence around the airport and a portion of peti-

tioner’s real property. In 1974, petitioner brought an action

in the District Court against both the State and the F.A.A.

for an injunction against federal funding. The injunction

was denied on November 5, 1974, without prejudice and

with the added note that “In the event that the State Court

unduly delays the litigation, the plaintiff may renew his

claim.” Ruling on Plaintiff's Motion for a Preliminary Injunc-

tion, J. Clarie, dated November 5, 1974.

v

Krom December 1974 to the present time, petitioner

removed the fence and erected no trespassing signs on at

least four occasions and was arrested each time. Petitioner

was tried on at least one occasion and was acquitted by a

jury. In the Ejectment and Quiet Title action, a trial was

had for thirty days between May 1, 1975 and April 30, 1976.

On January 11, 1977, petitioner prevailed in the Quiet Title

action in the lower court and was granted damages for

trespass and the State was to quit the land within one

hundred days. The State never formalized an appeal, gave

notice on December 2, 1981 that it was withdrawing from

the appeal after the federal court action was brought.

On December 13, 1977 and January 4, 1978 the State

engaged petitioner into a proposed contract for the sale of

real property. On April 19, 1978 petitioner withdrew from

negotiations, refused to tender any deeds for reasons of

fraud by attempting to date a taking back to November,

1964, by attempting to acquire the property without estab-

lishing fair market value of appraisals and unknown to

petitioner until 1982 that the Connecticut Department of

Transportation had engaged in a formal lease of petitioner's

property to the Federal Aviation Administration, without

compensation, without notice to the owner, without any

notice on the land records, and, of this date the F.A.A. has

not paid one cent for the trespassing and servitude upon

private property.

On June 7, 1982, Assistant Attorney General Victor

Feingold for the State of Connecticut, stated that the execu-

tory contract for the sale merely amounted to “a simple

agreement to sell land for a price certain. Now, thereafter,

no action was brought to even enforce the agreement . . .

[and] the statute of limitations have passed and the State

of Connecticut is barred from enforcing the agreement by

specific performance.” Transcript of June 7, 1982, State of

Connecticut Case No. 163875, at 13-14.

6

On August 20, 1984 petitioner in a letter addressed to

John J. Bartizek, District Clerk, Metropolitan District Com-

mission, quoted Section 9-1 of Chapter 9, a portion of which

reads as follows: “Before taking any land or private property

for any of the public uses aforesaid, said Board shall agree

with the owner or owners thereof as to damage done thereby

or shall cause to be made a fair appraisal of such damage.”

The above quote is from the Ordinances for the seven (7)

member towns of which East Granby is not a member, and

rather than an assessment of damages, the bureaucracy

resorts to an arrest for breach of peace and additional ex-

pense to the landowner to defend against false and mali-

cious charges.

ARGUMENT

The decision of the Connecticut Supreme Court, dated

February 2, 1988 denying the petition by the defendant for

Certification to Appeal from the Appellate Court (13 Conn.

App. 804) and the decision of the Appellate Court affirming

the decision of the trial judge should be reviewed by this

court to resolve an apparent conflict between the Connecticut

State Court and this court regarding the rights of a private

property owner against illegal, unlawful, and uncompensated

entry upon real property by the Metropolitan District Com-

mission of Hartford, Connecticut, the Connecticut Depart-

ment of Transportation and the Federal Aviation Adminis- |

tration.

There is an apparent conflict between the Appellate

Court of the State of Connecticut and this court over the

seizures of property and to seizures of persons under the

Fourth Amendment to the Constitution of the United States |

and where the gravamen of the petitioner's defense to the |

arrest for interference with the installation of a sewer project |

through private lands of the petitioner constituted a taking

“

of his land without statutory authority and an uncompensated

taking in violation of the Fifth and Fourteenth Amendments

to the United States Constitution, the State Court in its

charge did not expressly indicate whether the defendant may

have had a license and privilege to resist an illegal entry.

The jury should have been told unequivocally to acquit

the defendant if the entry was found to have been unlawful.

If justice is to be done in accordance with the rule of the

law, it is of paramount importance that the court’s instruc-

tions be clear, accurate, complete and comprehensible, par-

ticularly with respect to the essential elements that must be

proved by the government beyond a reasonable doubt, see

Holland vy. United States, 348 U.S. 121, 138, 75 S. Ct. 127,

99 L.Ed. 150 (1954); United States v. Lodwick, 410 F.2d

1202, 1204 (8th Cir., 1969). Although it is within the

province of the jury to draw reasonable logical inferences

from the facts proven, they may not resort to speculation

and conjecture, State v. Saracino, 178 Conn. 416, 419, 423

A.2d 102; State v. Festo. 181 Conn. 254, 259, 435 A.2d 38;

State v. Ballas, 180 Conn. 662, 674, 433 A.2d 989. Proof,

facts that the Metropolitan District Commission entered upon

the property of petitioner LEGALLY was an essential

element of the case, because it was that activity which they

claimed to be performing at the time the defendant may

have interfered with them. It is common experience that

an owner is familiar with his own property and . . . the

suppression of relevant material and otherwise admissible

evidence (Map #1) of ownership is grave error. It was

apparent at the outset of proceedings with the statement

made by the prosecution (page 8 Trans.) “as to any issue

of ownership of property, that’s totally irrelevant to a charge

of breach of peace. We're not worried in this instance about

who owns what” that the omission of ownership to the jury

served to give the impression that the legality of the entry

by the Metropolitan District Commission, in concert with

8

the Connecticut Department of Transportation, was of no

significance, because the petitioner defendant had no right

to resist whether it was lawful or unlawful. Proof that the

Metropolitan District Commission entered the property of

the defendant was an essential element of the State’s case.

_The intervening by the State on behalf of the Metropolitan

District Commission was done to confuse or leave an er-

roneous impression in the minds of the jurors. United States

v. Clark, 475 F.2d 240, 248, 2nd Cir., 1973.

The trial court's failure to instruct the jury properly on

license and privilege, 53a-181 had the effect of removing

from the consideration of the jury the issue of unlawful

entry. State v. Gallagher, 191 Conn. 433 at 455. An unlawful

entry under the circumstances was a seizure of property and

the simple language of the 4th Amendment applies equally

to seizures of persons and to seizures of property. Payton v.

New York, 445 U.S. 573. See also Lynch v. Household Finance

Corp., 405 U.S. 538, 92 S. Ct. 1113.

Where the court would not permit any evidence into

the record of defendant's ownership of the property by maps

and deeds and timely exceptions were taken and where no

evidence was presented or permitted into the record to

justify entry upon private property, such illuminating errors

warrant review by this court. A trial court's refusal to permit

documents to be marked as exhibits for identification is

“manifest- error.” Duncan v. McTiernan, 151 Conn. 469. In

[Duncan] the court stated: “The court had no discretion

to refuse such a request, because to allow such discretion

would permit a trial judge to deprive an aggrieved party of

a proper record for appeal.” Accord, Norwich Roman Catholic

Diocesan Corp. v. Southern New England Contracting Co.,

164 Conn. 472, 478, 325 A.2d 274; Drazen Lumber v. Casner,

156 Conn. 401, 405-406, 242 A.2d 754. The proferred records

in the instant case, not having been marked for identification,

9

are not a part of the record on this appeal and, therefore,

not available for examination by this court to determine

whether the trial court made a proper ruling in excluding

them as full exhibits. Sickmund v. Connecticut Co., 122 Conn.

375, 382, 189 A. 876; Davis v. Greenstein, 112 Conn. 530,

535, 153 A. 161; Roberti v. Barberi, 105 Conn. 539, 543, 136

A. 85. Under the circumstances, the trial court erred in

refusing to mark the proferred records for identification,

Duncan vy. McTiernan, supra 470.

A claimed constitutional error, raised for the first time

on appeal, will be examined, if at all, not to_ascertain whether

the ruling or instruction was undesirable, erroneous, or even

universally condemned but rather whether when reviewed

in the context of the entire trial it violated some right guar-

anteed to the defendant by the Fourteenth Amendment to

the Constitution of the United States; Cupp v. Naughton,

414 US. 141, 94 S. Ct. 396, 38 L.Ed.2d 369 (1973); or

Article First § 8 of the Constitution of Connecticut. State v.

Kurvin, 186 Conn. 555 at 565.

CONCLUSION

Plaintiff has alleged that as owner he had a constitu-

tional license and privilege to resist the illegal, unlawful and

uncompensated entry by the Metropolitan District Com-

mission, in concert with the Connecticut Department of

Transportation, upon private property without acquiring a

right-of-way or its equivalent.

For the foregoing reasons and upon the foregoing au-

thorities, the trial court ruling should be reversed and set

aside and the Writ of Certiorari granted.

Respectfully submitted,

Aucustus J. SIMMONS

Petitioner

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APPENDIX

2a

INDEX TO APPENDIX

APPENDIX A

Appellate Court Decision .................

APPENDIX B

Supreme Coast Deities . . fo 3h oboe

APPENDIX C

Conn. Gen. Statute Sae-iGl .. wc ccna ccscas

APPENDIX D

Coan. Comatitution, See. 6 ios eee

APPENDIX E

Comm. Constitution. See. 32... coe

APPENDIX F

Amendment V, Constitution of the United States _.

APPENDIX G

7a

Amendment XIV, Constitution of the United States 7a

3a

APPENDIX A

APPELLATE COURT DECISION

13 Conn. App. 804

STATE OF CONNECTICUT v. AUGUSTUS SIMMONS

(5578 )

Daly, Norcott and Foti, Js.

Argued December 8—decision released December 29, 1987

Information charging the defendant with the crime of

breach of the peace, brought to the Superior Court in the

judicial district of Hartford-New Britain, geographical area

number thirteen, and tried to the jury before Hale, J.; verdict

and judgment of guilty, from which the defendant appealed

to this court. No error.

Augustus J. Simmons, pro se, the appellant (defendant).

Geoffrey Marion, deputy assistant state’s attorney, with

whom, on the brief, was James G. Clark, assistant state’s

attorney, for the appellee (state).

Per Curiam. After a plenary examination of the record,

transcripts and briefs filed in this matter, and after having

afforded those claims of error, which are properly before

this court, the appropriate scope of review, we conclude that

there is no merit to the defendant's averments of error.

There is no error.

4a

APPENDIX B

SUPREME COURT DECISION

SUPREME COURT

STATE OF CONNECTICUT

NO. PSC-87-1075

STATE OF CONNECTICUT

Vv

AUGUSTUS J. SIMMONS

ORDER ON PETITION FOR

CERTIFICATION TO APPEAL

On consideration of the petition by the defendant for

certification to appeal from the Appellate Court (°12 Conn.

App. 804) it is hereby ordered that said petition be, and

the same hereby is denied.

BY THE COURT,

CyntTuHiA M. GworeEk

Assistant Clerk-Appellate

Dated: February 2, 1988

Notice to: 2/2/88

Clerk, Superior Court, Hartford at GA 13—60657

Clerk, Appellate Court

Augustus J. Simmons, pro se

James G. Clark, A.S.A.

Geoffrey Marion, S.A.S.A.

*Court error.

5a

APPENDIX C

CONN. GEN. STATUTE 53a-181

§ 53a-181. Breach of peace: Class B misdemeanor

(a) A person is guilty of breach of the peace when,

with intent to cause inconvenience, annoyance or alarm, or

recklessly creating a risk thereof, he: (1) Engages in fighting

or in violent, tumultuous or threatening behavior in a public

place; or (2) assaults or strikes another; or (3) threatens to

commit any crime against another person or his property;

or (4) publicly exhibits, distributes, posts up or advertises

any offensive, indecent or abusive matter concerning any

person; or (5) in a public place, uses abusive or obscene

language or makes an obscene gesture; or (6) creates a

public, hazardous or physically offensive condition by any

act which he is not licensed or privileged to do.

(b) Breach of peace is a class B misdemeanor.

(1969, P.A. 828, § 183, eff. Oct. 1, 1971.)

6a

APPENDIX D

CONN. CONSTITUTION, SEC. §

Rights of accused in criminal prosecutions. What cases

bailable. Speedy trial. Due process. Excessive bail or fines.

Presentment of grand jury, when necessary.)

Sec. 8. In all criminal prosecutions, the accused shall

have a right to be heard by himself and by counsel; to be

informed of the nature and cause of the accusation; to be

confronted by the witnesses against him; to have compulsory

process to obtain witnesses in his behalf; to be released on

bail upon sufficient security, except in capital offenses, where

the proof is evident or the presumption great; and in all

prosecutions by indctment or information, to a speedy, public

trial by an impartial jury. No person shall be compelled to

give evidence against himself, nor be deprived of life, liberty

or property without due process of law, nor shall excessive

bail be required nor excessive fines imposed. No person shall

be held to answer for any crime, punishable by death or life

imprisonment, unless on a presentment or an indictment of

a grand jury, except in the armed forces, or in the militia

when in actual service in time of war or public danger.

APPENDIX E

CONN. CONSTITUTION, SEC. 11

(Right of private property.)

Sec. 11. The property of no person shall be taken for

public use, without just compensation therefor.

7a

APPENDIX F

AMENDMENT V,

CONSTITUTION OF THE UNITED STATES

nor shall private property be taken tor public

use, without just compensation.

APPENDIX G

AMENDMENT XIV,

CONSTITUTION OF THE UNITED STATES

nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection of

the laws.”